Thursday, Jan 05 2012
• 11 a.m. (ET)

Copyright Law in the Digital Age

Copyright laws emerged with the arrival of the printing press in 15th-century England. The printing patent served as a way to protect guild members from those who would copy their work. Today, we live in a world of digital abundance, where everyone is both a creator and a user. As more and more information is produced and shared online — literary, dramatic, musical, and artistic works — some believe we need more ways to protect it without discouraging creativity. Diane and her guests discuss the role of copyright law in the digital age.

Guests

Sandra Aistars
Executive Director of Copyright Alliance

Michael Carroll
director, Program on Information Justice and Intellectual Property, Washington College of Law,American University and founding board member of Creative Commons, Inc.

William Patry
senior copyright counsel at Google and author of "How to Fix Copyright"

Program Highlights

The number of people in the world with access to the internet is estimated at more than 2 billion and all of those are able to share lots of information quickly, easily, and affordably. As a result, some believe we need new ways to think about protecting original content without discouraging creativity. Our guests explore how copyright law has changed in the digital age.

What Does Copyright Protect?

Copyright is a bundle of exclusive rights granted to artists who create an original work of authorship. It allows the creator exclusive rights to copy, distribute, publicly perform, or make adaptations to creative work. Limitations to copyright include fair uses. Copyright protects both published and unpublished work. Interestingly, this issue poses a problem for historians wishing to publish old letters as part of their research. The letter-writer owns the copyright to the letter, so in order to republish it, the historian would have to contact the writer for permission – not just the recipient.

Public Confusion About Copyright

There is a lot of confusion about copyright, Michael Carroll said, because the law is quite complicated. “The incentives are different in different industries for different kinds of creators,” Carroll said. Copyright is automatic, and for some people, that’s good news. But Carroll points out that for others, who want to create something to share online, this system might not be desirable. This is where projects like Creative Commons can be useful, Carroll said.

Enforcement

Copyright enforecement online can be difficult, according to Sandra Aistars. “It’s one thing to say that the copyright lasts for the life of the artist plus 70 years. But in reality that term is far, far shorter because as soon as you’ve put something out publicly and publish it in the digital age it’s very quickly disseminated online, often without your authorization. So that term is less meaningful,” she said.

The Shepard Fairey Case

A caller asked about the recent copyright case involving artist Shepard Fairey’s famous poster of President Obama that was taken from a photographer’s print of the president and altered. The original copyright holder of the photograph took Fairey to court, and the case was eventually settled out of court. Both Carroll and William Patry said they believed what Fairey did fell under fair use, but Aistars disagreed. She said that Fairey’s work appeared to be very solidly based on the original photograph and that Fairey recreated all the creative elements of the photographer’s original image in his own work, rather than achieving a truly transformative meaning that would be necessary for the work to fall under fair use.

Transcript

12:06:51

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The number of people in the world with access to the internet is estimated at more than 2 billion and all of those are able to share lots of information quickly, easily, affordably. As a result, some believe we need new ways to think about protecting original content without discouraging creativity.

12:07:25

MS. DIANE REHMJoining me to talk about the role of copyright in the digital age are Sandra Aistars of Copyright Alliance and Michael Carroll of American University's Washington College of Law. Joining us from WSHU in Fairfield, Conn., William Patry, he's author of "How to Fix Copyright." That's what we'll be talking about in this hour. I hope you'll join us, 800-433-8850. Send us your email to drshow@wamu.org. Join us on Facebook or Twitter. Good morning and Happy New Year to all of you.

12:08:22

MR. MICHAEL CARROLLAnd to you.

12:08:22

REHMThank you.

12:08:22

MR. WILLIAM PATRYGood morning.

12:08:23

REHMMichael Carroll, if I could start with you, give us sort of a brief rundown of what is copyright and what it protects.

12:08:33

CARROLLOkay, great. So copyright is actually a bundle of exclusive rights that we give to authors so anyone who creates an original work of authorship immediately gets these exclusive rights to copy, distribute, publicly perform or make adaptations of the creative work.

12:08:51

CARROLLThose rights are subject to some limitations, like fair use or other kinds of uses that the public can make and those rights last for the life of the creative person, the author, plus another 70 years. But at that point, then the copyright ends, it expires and then the work goes into what copyright lawyers say is the public domain. And most people mean the public domain is published, but for us, it means there's no more copyright left and you can do anything you want with it so the novels...

12:09:23

REHMAnything?

12:09:24

CARROLL...anything. If I want to republish the novel of Mark Twain, I can do it tomorrow because his copyrights have expired.

12:09:32

REHMNow copyright, I gather, protects both published and unpublished works; is that correct?

12:09:40

CARROLLAbsolutely.

12:09:42

REHMSo that it doesn't have to be listed by the Library of Congress or anything of the sort?

12:09:49

CARROLLThat's right. And in fact, that's a problem for historians. For example, if every unpublished letter, the copyright is owned by the author of the letter even though the recipient has the physical copy in their possession. And if you want to republish that letter, you've got to go and chase down the writer, not just the recipient.

12:10:10

REHMNow Sandra, Michael said that the copyright lasts 70 years. Hasn't that been extended now to 90 years?

12:10:23

MS. SANDRA AISTARSNo, the copyright lasts 70 years after the death of the creator. So that is the extended copyright term, the full copyright term in the United States, as well as in most countries of the western world.

12:10:37

REHMFrom your point of view, is that sufficient?

12:10:42

AISTARSIt is an appropriate term and it's consistent with international law.

12:10:48

REHMAll right. And turning to you, William Patry, tell me the difference between copyright trademark and patents.

12:11:01

PATRYYes, there can be some overlap. Historically, they've been separate and they attempt to address different problems so for trademark law, generally we associate that with making sure that consumers know the source of something. If you go into a grocery store and you've always liked a particular brand, you want to make sure when you go the next time, it's going to come from the same manufacturer and that's important for us and it's important for the manufacturer.

12:11:34

PATRYWith patents, traditionally it has protected inventions, useful objects. With copyright, it has protected different things. One of the problems I think we have right now is that copyright, at least in the United States, started out protecting very few things for a very short time. It only protected books, maps and charts and it did so for a maximum of 28 years, more typically only 14 years.

12:12:04

PATRYIt didn't protect music. It didn't protect fine art. It didn't protect sculpture. It didn't protect emails or movies or photographs because they hadn't been invented yet. What has happened over time is that copyright has expanded in subject matter so that now it includes not just books, music and movies as it should, but emails, lawyer cease-and-desist letters, probably some Twitter postings. It does so automatically and it does so for the life of the author plus 70 years in the United States.

12:12:41

PATRYA sort of one-size-fits-all when the size is being applied to the entire universe may not be the optimal way to do things. I think that copyright should last as long as necessary to accomplish its purpose. It shouldn't last less than that, but it shouldn't last longer than that. And the way that we need to figure it out is to figure out what's appropriate for each type of subject matter.

12:13:05

REHMSo you would fix copyright by doing what?

12:13:13

PATRYA number of things, first of all, I think we need to have an evidence-based approach rather than an ideological approach. God save us all from ideologues. Copyright is an economic right and appropriately so, so one thing we need to figure out is what are the economic needs of particular types of works and I think those are different.

12:13:40

PATRYThere are ways to empirically figure these things out. It's hard to do always by class because there are different types of books. I believe you wrote a book about Maxie, Maximillian, your dog?

12:13:54

REHMYes.

12:13:56

PATRYAh, you know there are many different types of books and the markets for those are probably different for each one and so you wouldn't really want to have one size fits all for books and emails or for music and even within types of books there might be changes. So one way to do it is the way, in fact, we used to do it. We used to require people to put a notice on saying that they wanted their copyright. That really wasn't an owner's requirement. We used to have a requirement that after 28 years, you had to renew your work with the U.S. Copyright Office. That was a two-sided piece of paper and it cost around $5.

12:14:43

PATRYSo I think most of us believe if the government was going to give you a grant that lasted 28 years for $5 and all you had to do was to fill in a piece of paper once in 28 years, most people would probably do that. But I think if you look back at the historical records, few people did. I think the renewal rate was around 15 percent overall, but it varied from work to work. Movies had a very high renewal rate. Books had a very low renewal rate, around 7 percent.

12:15:15

PATRYMy point is this, is that we have data that shows us what the probable economic life is for classes of works and we should use those. We certainly need to protect investment. We certainly need to make sure that people who put a lot of money into projects can get that money back. But we also don't need to overdo it. So in 1998, we changed from giving protection from life of the author plus 50 years to life of the author plus 70 years. That's 70 years after you are dead.

12:15:54

PATRYSo to do that you'd have to ask, well, why do we do that? Why are we giving an extra 20 years? Are we giving an extra 20 years because we believe that that will lead more people to create? And I think that's unlikely. I think it's unlikely that there was any author in 1998 who said, you know, I'm probably going to die in 30 years and I'll have another 50 years. That's 80 years, but you know that's not enough. I really need to have 70 years after I die rather than 50 years after I die. I doubt there's ever been that sort of a person.

12:16:27

PATRYAnd so when that occurs, you are really giving rights that aren't necessary and that impact adversely.

12:16:37

REHMAll right. William Patry, he's the author of "How to Fix Copyright." He's also senior copyright counsel at Google and I want to turn to you now Michael Carroll because copyright is to protect someone from copying your work and taking it for their own. But the question is can copying someone's work lead to the creation of something new and therefore is copyright perhaps too restrictive?

12:17:24

CARROLLYes, absolutely right. That is how culture gets created, you learn from the process of copying. That was how traditional visual painters learned by copying the masters and so you need that ability to copy. That's the whole idea of the public domain is that copyright has to expire so that I can go back and I can take Huck Finn and I can repurpose it for a modern audience and not have to ask Mark Twain's heirs for permission because his works are in the public domain.

12:17:55

CARROLLLots of other kinds of copying takes place. If you want to make fun of the work of art, you have to be able to copy enough of it so the audience knows what you're talking about. "Saturday Night Live" does that all the time. How do they get away with that? Well, we have the fair use doctrine, which says certain kinds of copying are permitted without permission so parody, making fun of the work of art, we basically say that's a fair use because you don't need a license to make fun of the author's work.

12:18:25

CARROLLThere's other kinds of productive copying that you're talking about that ought to be permitted as well.

12:18:31

REHMMichael Carroll, he's founding board member of Creative Commons. He's also professor of intellectual property at American University's College of Law. Short break, we'll be right back.

12:20:04

REHMAnd in this hour, we're talking about copyright law in the digital age. With information and its availability expanding all over the planet, many are wondering whether there do need to be some changes made to copyright law. Here in the studio, Sandra Aistars. She's executive director of Copyright Alliance which represents both individual and institutional members. Michael Carroll is at the American University's Washington College of Law. And joining us from WSHU in Fairfield, Conn. is William Patry. He's author of "How to Fix Copyright." He's also senior copyright counsel at Google.

12:21:03

REHMSandra, I know you wanted to make some comments.

12:21:07

AISTARSYes, thank you, Diane. I wanted to comment on a couple of things that Bill and Michael said in laying out the situation on copyright issues today, and what might or might not be necessary to fix. One thing that Bill said that I think is important to question a little bit is the assertion that copyrighted works have different needs for protection and different needs perhaps for the length of protection or the type of protection that they're afforded.

12:21:37

AISTARSWhile I think that a persuasive case might be able to be made if you're talking about a copyrighted work with very little investments, such as an email that you dash off or -- I think courts are enabled to make those sorts of analyses and have over time given different levels of protection to different levels of works.

12:21:57

AISTARSWhat I'm worried about is if we make a statutory change to copyright law that would somehow set up a class system where different types of works, whether they're books or photographs or works that are perhaps of lesser economic value as an individual unit or cost less to produce as an individual unit, get fewer protections you're setting up a situation where only the powerful can exercise their copyright rights and protect their copyright rights.

12:22:27

AISTARSI think it also creates additional confusion for users. I think when you interact with users online there's already a good deal of confusion about what's permissible and what's not permissible under copyright law. Take the Fair Use Doctrine for instance. That's often something where consumers have imagined that a doctrine that is initially intended to further things like education, criticism, commentary, the creation of new works of art, that that doctrine in the public understanding contrary to the legal understanding of that doctrine has morphed into something where anything that you think is fair to do with the work should be permissible.

12:23:13

AISTARSThat's obviously setting up problems in how we interact online. Imagine if that was now compounded by people having to consider not just whether a use that they're considering is fair but whether a particular type of work is protected to the same degree as another copyrighted work. So is there a different term of protection for a book? Is there a different term of protection for a photograph for instance?

12:23:41

REHMAnd that phrase you used, the public versus the legal understanding. How do you interpret those differences, Michael Carroll?

12:23:53

CARROLLWell, I think there is a lot of public confusion around copyright. It's too complicated. I agree with Bill that from the policy perspective one size does not fit all. And then we have to figure out what do we do with that. The incentives are different in different industries for different kinds of creators. Software producers are not, movie producers are not, email writers and that kind of thing. But you're going to have a system that's got to be understandable by all these different people.

12:24:21

CARROLLSo just to get a few points clear for your listeners, one is copyright is now automatic. A lot of people in the United States still think, what can I do to get a copyright? And that's because prior to 1989, as Bill was saying, you did have to affirmatively opt in to the copyright system. It used to be you had to register and go to the copyright office. It then was you just had to put little circle C when you published your work. But now all of that's gone. The minute you put it out there on the internet, you have a copyright.

12:24:54

CARROLLAnd so that part is sort of -- for the people who like copyright that's the good news. But not everyone wants that copyright. Because if your purpose of putting it on the internet is to share it and let other people use it you're not interested in the kind of control. There's no easy way to signal that. So that's part of what the Creative Commons project that I'm part of was responding to, is this one size fits all doesn't work. And the public needs a simple way to understand what the dos and don'ts are when they encounter works on the internet or otherwise.

12:25:26

REHMWhat about that, Sandra?

12:25:28

AISTARSWell, I think the Creative Commons approach is a very interesting one. And it is based in fact on the existence of copyright and whether its automatic or requires formalities. The Creative Commons approach wouldn't work if you didn't have the copyright in the work to begin with. I think it's wonderful for folks who are not professional creators, don't make a living out of writing songs or taking photographs or authoring books, to have the ability to share their work freely. And to easily identify what types of uses they wish to authorize online. And I, you know, commend Michael for that goal for the Creative Commons project.

12:26:17

AISTARSWhat I think often goes missing in discussions of Creative Commons is the fact that it's not always the best solution for an artist, for instance, who is a professional creator and wishes to retain control over their works. And oftentimes somebody who's starting out as a creator may take on a Creative Commons license and put their work out there for public sharing on the internet just requesting attribution. But that's an irrevocable license for the entire term of the copyright. And that will limit the types of commercial uses that individual artist can make of that work in the future.

12:27:00

REHMAll right. Now, here is a specific example. It's from Jane who's in Maumelle, Ark. And she says, "I completed a dissertation at the University of North Carolina in 2000 before anyone dreamed of wholesale internet distribution sites, such as ProQuest Dissertations and Theses online. Recently I and many colleagues noticed our dissertations were available online. None of us was contacted by ProQuest. I was not contacted by my university about internet distribution. My dissertation was copyrighted and I assumed that I and my university still hold rights to this. Do you have any insights?" William Patry.

12:28:08

PATRYSure. Yes. I wanted to mention too that while I do work for Google, I'm not appearing as a Google employee, only as an author. And I have been a (word?) for 30 years, 25 for which appeared before Google. So my answer to her question is that yes, she does own copyright in it. And she has the exclusive right to authorize other people using it. And if people used it without her permission then she has a right to stop that and should.

12:28:41

REHMDoes she have any other recourse, Sandra?

12:28:45

AISTARSWell, I think Bill makes an interesting point that, you know, she has the right to enforce her copyright. But how will she go about doing so? And that's often the problem that artists and creators find themselves in when their works are distributed online by commercial sites that intend to profit from them without consultation with the artist. And so there are various legislative remedies that are currently being considered in congress to deal with some of these rogue websites. I don't know whether the site that she's referring to would fall into that sort of a category.

12:29:19

AISTARSBut certainly enforcement online is a very difficult issue. It's one thing to say that the copyright lasts for the life of the artist plus 70 years. But in reality that term is far, far shorter because as soon as you've put something out publicly and publish it in the digital age it's very quickly disseminated online, often without your authorization. So that term is less meaningful.

12:29:42

REHMAll right. And here is an email from Terry in St. Louis who says, "My understanding is that once a song has been recorded the first time, there is no need for permission from the songwriter to record it again. The songwriter gets the royalties, but they have no control over who records the song. Is this correct?" Michael.

12:30:15

CARROLLIn a way, yes. So this is a nice example of -- copyright bundles two things together. It's an idea of compensation for the artist and control over the use of the word. And some parts of copyright law separate compensation and control and this is one of them. So we give these exclusive rights that are all about control. And then we back off from control in a few places by saying you have to pay the creator, but you have an automatic right to use it.

12:30:42

AISTARSSo in this case, with respect to a musical composition, once that song has been recorded and released to the public other bands and other musicians can record that same musical composition as long as they pay a statutory fee back to the songwriter. So there's an automatic right to make the cover version but there's still compensation to the songwriter.

12:31:04

REHMSo in that case, as long as payment is made, it's legal. But suppose somebody just covers the song and that's it?

12:31:17

AISTARSOh well, then that would probably be infringing unless they had some fair use or other defense.

12:31:21

REHMAll right. And to you, William, the question of the use of one's name on products without permission from that individual, where does that fall?

12:31:40

PATRYRight. That would fall into a right of publicity or a trademark area, not copyright. Copyright has never protected names or titles. And for the reason that we spoke about earlier, which is that we want to protect consumers and make sure that they know the source of the good. We also want to protect individuals to make sure that their names aren't being used to sell things that they don't want to be associated with. And those are important protections but they're outside of copyright.

12:32:12

REHMHere's an email from Frank. He says, "My take on intellectual property law is that it's all wrong. Intellectual property rights strike me as fundamentally wrongheaded. They try to treat ideas, information and performances as objects that can be locked away or fenced in. Information flows freely around the world like air, rain and water with no one claiming ownership. At most, all we need to subscribe -- we all need to subscribe to receive or contribute to that flow of information." Michael.

12:33:01

CARROLLWell, that is a view and there are actually a couple of economists who've written a book that asserts that that writer is correct. But I think most people would agree that it's not just the creators that need the incentive. It's the investors in the infrastructure for creativity if you want a big block buster movie to be made. Some of the people financing that project are interested in the creative arts. Some of them are just in it for the money.

12:33:29

CARROLLAnd part of what the theory of copyright is is to attract that money from investors who are just as happy to put their money in an oil company as a movie company. They need some protection -- some return on that investment. And copyright -- the restrictions, which I agree, that is the effect, you are restricting competition. You are restricting the free flow of information as a temporary monopoly in order to attract that money.

12:33:55

REHMAnd you're listening to "The Diane Rehm Show." Sandra.

12:34:00

AISTARSOne comment on your response to make is that the protection that's supported under copyright is not for the idea itself but for the expression of the idea. So I think that's an important distinction to make. A creator isn't protecting the ideas in his head but rather their creative expression, whether it's in a painting or whether it's in a written work or in a photograph or what have you.

12:34:31

AISTARSAnd so the creativity that you're spurring also is by the individual creator of the work, not just by the larger economic investors. And the protections are limited appropriately to not protect ideas but protect only the expression of those ideas.

12:34:49

REHMWell, I gather, Bill Patry, that the copyright office is part of the Library of Congress. Is that correct?

12:35:01

PATRYYes, and I worked there for four-and-a-half years.

12:35:05

REHMAnd so if you talk about how to fix copyright, you've got to go through a whole sequence of legal remedies through the congress. Is that correct?

12:35:22

PATRYCertainly, in order to change law, you need to go to those people who are empowered to change law. And in our system, that's congress, although there's always been a debate about whether courts make law and interpret law. I think Justice Sotomayor, during her confirmation, had an issue with a video tape when she was a Court of Appeals judge in which she said, look, we make policy, too. But certainly it's true that in terms of changing the term of copyright you would have to do that through congress.

12:35:55

PATRYI would say however that as an economic right, and as you pointed out, things change. Markets change, technologies change, the way that people consume things change. That an awful lot can be done by business models. And copyright can serve a great purpose in protecting healthy business models.

12:36:18

PATRYAnd I also think it's true that law is not a solution to all the problems in the world. I worked for the House of Representatives drafting copyright laws and I believe in copyright law and I believe in laws being effective. But they're really a means to an end. And they're a means to protecting economic rights and healthy business models. And you can do a great deal outside of courtrooms by healthy business models.

12:36:45

REHMAnd of course that's the problem now, isn't it, that people immediately turn to the courts to prosecute someone they believe has broken the copyright law, Michael?

12:37:01

CARROLLWell, that's true although. I mean, some people -- some smaller copyright owners will tell you the process of going to court is too expensive.

12:37:08

REHMToo expensive.

12:37:09

CARROLLNow the system -- copyright has some advantages for authors. So if you bring your lawsuit -- normally in the United States, you have to pay your own lawyer's fees, even if you win. But in the copyright act, there's a provision that if you're successful, the court can make the other side pay your lawyer's fees to make it cheaper to bring that lawsuit.

12:37:29

REHMMichael Carroll. He's at the American University's Washington College of Law. He's founding board member of Creative Commons. When we come back we're going to open the phones, take your calls. I look forward to hearing from you.

12:40:05

REHMWelcome back as we talk about copyright law in a digital age. Let's open the phones. First to Charlotte, N.C. good morning, Mike, you're on the air go right ahead.

12:40:21

MIKEGood morning. On Monday I'll begin teaching a digital illustration course at Queens University of Charlotte and we're going to be talking about this very same topic. As the panel probably knows, the very nature of digital art, graphic design in the new century is sort of, you know, battling with copyright on a daily basis. One of the issues and topics we're going to discuss, specifically, is Shepard Fairey's Obama's Hope and Progress posters. There's a court case surrounding that about fair use and reference and I just wanted to, sort of, hear from each of the panelists.

12:40:59

MIKEWhat do you make of that? That's something that is, you know, deals with, you know, like I said, the very nature of making digital art and graphic design and it almost, sort of, puts the stunt on creativity and a fear in designers and I'm wondering if you have advice and, you know, ways to move forward on that.

12:41:17

REHMAll right, sir, thanks for your call. Michael.

12:41:21

CARROLLSo right. That litigation, actually, got resolved so we're not going to get a court answer, but a couple of points. So, the author, the copyright owner, is the photographer who makes the creative choices about how to depict President Obama. A lot of the value of the image comes from President Obama's likeness not from the photographer's creative choices, but you'd still -- creativity is small enough that you get a copyright in that photograph. And then Shepard Fairey took that photograph and modified it and transformed it in a way that created this image that we all saw.

12:41:54

REHMA poster, yeah.

12:41:56

CARROLLSo the question fair use then is this balancing test that says when you want to come along and transform a copyrighted work like that is it fair or does it violate the author's right. And that was the point of that litigation. In my view that was a fair use, but other people might...

12:42:13

REHMBut wait just a minute. The photographer who took the photograph and then Shepard Fairey took that photograph and created a new image from it. Was that fair use in your view, Bill Patry?

12:42:37

PATRYYes. I do think it was fair use because I think what was iconic about that poster were the things that Shepard Fairey added to it. It's not to take away anything from that photograph, the original photograph. It was an issue in the case about bad faith and about his truthfulness and there are judges who have different views about how truthfulness or lack of that should influence things. But if you leave that aside, I think it was a traditional fair use.

12:43:12

REHMWhat was the truthfulness issue, Sandra?

12:43:17

AISTARSWell, the truthfulness issue -- and contrary to Bill, I don't think that it's a fair use, but we'll actually never know because it was a case that was settled out of court. The truthfulness issue was that originally Mr. Fairey represented that he had used one image that was, you know, somewhat different from the Hope Poster that he ultimately came up with and also covered up throughout the discovery process that, in fact, he had used a different image which was very much alike with the poster that he had ultimately come up with.

12:43:53

AISTARSIn terms of the creativity, I think looking at those images side by side it's very telling that the original photographer's image has the same slant of the head, the same heroic stance, there's the same shadowing, light angles and composition of that image. And that's why I think it was so significant that Mr. Fairey chose to misrepresent which image he had originally used.

12:44:23

REHMAnd what about the original photographer, Michael, did he get anything from that use?

12:44:32

CARROLLNo, if it's a fair use, you don't pay a license fee because...

12:44:36

REHMI see.

12:44:37

CARROLL...I mean, and so that's why there's, sort of, the three -- there's full protection, which is all control. Then there's that musical example we talked about where the copyright owner gets compensated but they can't stop the other person from making the use and then if it's a fair use, you don't have to pay any money to the copyright owner because it's fair.

12:44:57

REHMOkay, so that photograph was published nationally was it not? So you're not sure it was fair use, Sandra.

12:45:09

AISTARSWell, I'm not sure that it was fair use because, you know, we ultimately never had the opportunity to examine the facts surrounding the creation of the secondary image and compare the two images to understand whether Mr. Fairey had truly made a transformative use that gave a completely different meaning to the image. So what, you know, we're left with are the facts that the image was very much based on the original photographer's image and all of the creative elements of that photographer's image were recreated in the secondary work by Mr. Fairey.

12:45:45

REHMAll right. Let's go to Bruce in Dallas, Texas. Good morning to you.

12:45:51

BRUCEYes, good morning, Diane, how are you?

12:45:53

REHMFine thanks.

12:45:54

BRUCEMy question is this. Long John Silvers Seafood shops are obviously named after the Long John Silver character in "Treasure Island." Now, the copyright -- I believe that novel was written in 1798 so it's -- copyright's long gone. So does the corporation which owns the seafood shops, do they maintain that copyright in perpetuity or is there a limitation or is there a different interpretation of the copyright law when someone takes something out of a novel and uses it, in this case, for the name of a business?

12:46:36

REHMBill Patry.

12:46:37

PATRYThat goes back to the earlier discussion we had about the difference between trademark law and copyright law. If a work is in the public domain then you can take everything out of it including the characters. There have been -- so in this particular case if you wanted to take Long John Silver out of a public domain work and make it the theme of your restaurants, you know, you can do that. You, of course, don't have any exclusive rights over anyone else and if Shakespeare's in the public domain you can certainly make your own play based on a Shakespearean play.

12:47:14

PATRYAnd nobody else could then copy your new version of that. That's what a derivative work is. But anyone else could come along and make their own version of Shakespeare. The more difficult cases have come in terms of character developments where a character appeared in one work and that work went into the public domain but there have been subsequent versions of the character that are still under copyright and those are really wonderful, sort of, law school questions. But the simple one of a character being in the public domain for 200 years and making it the theme of a restaurant shouldn't be hard to figure out.

12:47:55

REHMAll right. Here's an email from Ron who says, "I'm a retired secondary teacher. I've thought about selling lesson plans online. How do I go about protecting what I've created?" Michael.

12:48:12

CARROLLWell, so I think going back to the point we talked about earlier that the copyright's automatic. So you have -- you don't have to do anything to get the rights. Now, when you say protect what does that mean? If you're going to -- it is up to the copyright owner to enforce those rights and so they would...

12:48:29

REHMBut if somebody lifts that off the internet and claims that it's hers instead of his, what does this listener have to do to protect that?

12:48:43

CARROLLWell, he would have to get a lawyer and file a lawsuit to track that person down. But there's an -- if the user puts that up on the internet through some intermediate site like a YouTube-type site, there's a provision in the law to deal with this digital issue where the platform -- let's call that the platform, whether it's YouTube or Google or some other. If you post infringing material to that platform, we don't hold the platform immediately responsible for that, but they do have to respond to a notice.

12:49:17

CARROLLSo all the copyright owner has to do is send an email to the designated agent saying, I'm the copyright owner. This is my work. You need to disable access to that work. And the platform then has to take that down if they want to maintain their legal protection against having to pay fines unless the person says, wait a minute, I had a right to put that up. And that little balancing provision has actually been extremely beneficial for the internet.

12:49:45

CARROLLIt's arguable that we wouldn't have YouTube unless you had that protection because the cost of -- if you get caught for infringement and you're a big company like Google, you're going to pay a -- you know, you can't afford to run that platform. So this balancing act has been a really important part of the growth of the internet and digital innovation.

12:50:05

REHMAll right. To Satellite Beach, Fla. good morning, George.

12:50:10

GEORGEGood morning, Diane, how are you?

12:50:12

REHMI'm fine, thanks, sir, go right ahead.

12:50:14

GEORGEGood, okay. There's a patent company and copyright company, International Patent, LLC. They have got 30 Shell companies and down in Texas -- there's a judge in Texas in Marshalltown that's all they do is patent and copyright lawsuits. A few months ago, they sold 6,000 patents to $4.5 billion and the people that bought them is Google, Microsoft, Apple, Twitter and YouTube. On top of that, now they've almost gained $8.5 billion from the lawsuits. They don't have to pay any tax on the court awards.

12:50:58

GEORGEI think it's absolutely scandalous and the gentleman that bought it to -- he was an investigative attorney. He was named Chris Crawford and he was on NPR news. And I haven't heard nothing else since then, but the law is absolutely terrible because the 30 Shell companies in Marshalltown in Texas and there's no secretary. You can't get a hold of any of the attorneys nor to the companies settle out of court because the court costs are so much.

12:51:30

REHMAll right, sir, thanks for calling. Michael, you know about this.

12:51:34

CARROLLWell, yeah, this is not -- this is really patent law not copyright, but it is, you know...

12:51:39

REHMBut he said it was copyright and patent.

12:51:42

CARROLLWell, the law firm might represent those, but this particular phenomenon is what's sometimes referred to as a patent troll. That is where you buy up a bunch of patents for the purpose of filing lawsuits and it's one of these problems in the patent system. It's a deep problem, but it's not really what we're talking about here. There is a version of this with respect to news organizations and bloggers. There's a company that has filed, you know, thousands and thousands of lawsuits against bloggers for using news content, but this -- we don't have exactly the same troll problem in the copyright space.

12:52:20

12:52:27

JENNIFERGood morning, Diane. Thanks for taking my call.

12:52:29

REHMSurely.

12:52:30

JENNIFERI was hoping that your guests could help me out with a problem on copyrighting a song. I did know -- I had heard that -- I play in a band and put out a CD. I'd heard that, you know, once an artist had created their song, put it out, you didn't have to ask permission, you just had to pay for it. So we put out an album and I tried to pay for it and they didn't want to give the licensing for it. And I said, but this is the law, and they caught me on a technicality that said you have to ask for the compulsory license before you actually put your album out.

12:53:01

JENNIFERSo I already had the album out and now it's kind of an illegal song just floating around. I'm not really sure what to do with that. Any...

12:53:08

REHMWhat recourse does she have, Sandra?

12:53:11

AISTARSThe law is set up that you do need to get a license before you publish a copyrighted work. So she should have obtained the compulsory license prior.

12:53:22

REHMShould have. She didn't, so what does she do now?

12:53:24

AISTARSI would presume she can engage in a discussion with the copyright owner and, you know, get a license after the fact to clear up any copyright infringement that may have occurred prior to taking the license.

12:53:35

REHMAnd you're listening to "The Diane Rehm Show." Any other thoughts on that, Bill Patry?

12:53:43

PATRYNo, I agree with Sandra.

12:53:45

CARROLLWhen if you -- worst case if they won't give you a license, you can give them the notice and re-record the song and then you'll be under the statutory license.

12:53:53

REHMAh, good advice. Jennifer, thanks for calling. And let's see -- to Lapeer, Mich., good morning, Debra.

12:54:05

DEBRAGood morning. I need your guests to go over a little bit of intellectual property explanation on that. My experience is that I made -- make an alter dog costume that resembles Underdog and I've been -- had it taken off of a sale website saying that I violated the intellectual property because it was made of red, white and blue. Even though it's unlicensed material, how can they say that's intellectual property of classic media when it's these ambulance chasing lawyers going after you for what isn't their client yet?

12:54:44

REHMAll right, Michael.

12:54:45

CARROLLSo if I can -- can I make one general point about this, which is it's sort of in terms of the balance of power in intellectual property? While I'll agree with Sandra that the small artist trying to enforce their rights on the internet, it's often difficult. You also -- this is an example of the sort of flipside where large intellectual property owners can bully smaller producers, smaller users with claims that really aren't well founded, but the recipient of that threat doesn't really have a way of responding.

12:55:16

CARROLLThis is, again, really more of a trademark issue...

12:55:18

REHMYes.

12:55:19

CARROLL...than a copyright issue.

12:55:19

REHMSounds that way.

12:55:20

CARROLLYou know, if we had the question about fashion design, we have an exception in copyright law for useful articles and we don't give copyright to fashion.

12:55:31

REHMAnd quickly, could each of you comment on the Stop Online Piracy Act coming up for a vote in Congress at the end of the month, Bill Patry.

12:55:46

PATRYI'll pass on that one because I'm here as a author, not as a Google employee.

12:55:51

REHMAll right, Michael.

12:55:52

CARROLLSo it's a problematic response to a problem I'll admit is a problem, which is off websites set up outside of the United States which basically sell access to copyrighted content that they don't own any rights to and so that's money that, you know, they shouldn't be collecting. It's a commercial -- that's -- but the fix is worse than the problem because the fix would require, basically, in shorthand, breaking a fundamental part of the internet's architecture in order to enforce those copyrights. And it would be an ineffective measure that would cause a lot of collateral damage.

12:56:30

REHMSandra.

12:56:31

AISTARSThe need for the Stop Online Piracy Act goes broader than just copyright, but I'll address the copyright issues since that's what we're focused on now. As we've been discussing, the internet is a very critical resource for artists and as you note, people are finding their works being distributed entirely without their authorization on rogue websites that monetize those works without any return to the author. These are works -- these are sites that are based offshore that prey on U.S. rights holders and direct their activities towards the U.S.

12:57:06

REHMYou think it should pass?

12:57:08

AISTARSI do think it should pass and I think there's a lot of hyperbole and misunderstanding about what the law does that I'd be glad to address after the break.

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